Sh. Krishan Kumar Vats vs Bses Yamuna Power Ltd & Ors.
2015 Latest Caselaw 1100 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            W.P.(C) No. 1210/2015 and C.M. No.2126/2015

%                                                          6th February, 2015

SH. KRISHAN KUMAR VATS                                   ..... Petitioner
                 Through:                Mr. Lokesh Kumar, Advocate.


                          Versus

BSES YAMUNA POWER LTD & ORS.                  ..... Respondents

Through: Mr. S.N. Chaudhary, Advocate for respondent No.1.

Ms. Shobhna Takiar, Advocate for respondent Nos.2 and 3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition filed under Article 226 of the Constitution

of India, the petitioner who was the erstwhile employee of the DVB and

whose services were thereafter taken over by the respondent no.1 herein viz

the BSES Yamuna Power Limited, seeks the relief of quashing of the

Special Voluntary Retirement Scheme (SVRS)-2003 dated 18.12.2003

issued by the respondent no.1 and the order dated 30.12.2003 by which the

petitioner was given voluntary retirement under the SVRS-2003 scheme.

2. What strikes this Court right at the outset is that the stated

illegal action of the respondent no.1 of the year 2003, is being challenged, in

the year 2015 i.e after over about 11 years. Clearly therefore the writ petition

is barred by gross delay and laches more so for the reason that after being

given the monetary benefits under the SVRS-2003 pursuant to the impugned

order dated 30.12.2003 petitioner derived benefit of the monetary benefits

running into lacs of rupees. What is this amount received by the petitioner

has deliberately not been stated by the petitioner in the petition, but, on a

query put to the counsel for the petitioner, in the course of arguments, it is

conceded that around Rs.15 lacs were received by the petitioner from the

respondent no.1. Therefore, merely because the respondent no.1 is having

an illegal clause in the scheme that the option exercised of voluntary

retirement cannot be withdrawn, cannot mean that a cause of action of the

year 2003 can be allowed to be challenged by the petitioner in the year 2015.

3(i) Besides the writ petition being barred by gross delay and

laches, the petitioner is also guilty of concealment of facts besides lacking in

bonafides.

(ii) The first concealment, as stated above, is that the petitioner has

not stated in the writ petition as to what is the amount he received pursuant

to the acceptance of his voluntary retirement and which answer is given only

at the time of oral arguments that petitioner has received and taken benefit of

around Rs.15 lacs of rupees.

(iii) The second concealment of fact is that counsel for the

respondent no.1 has drawn the attention of this Court to a writ petition filed

by this very petitioner being W.P.(C) No.185/2012, and in which petition the

petitioner had claimed the relief of quashing of the selfsame order dated

30.12.2003 viz the petitioner in that writ petition also claimed the relief that

he should not have been held to be voluntarily retired from the respondent

no.1 in terms of the order dated 31.12.2003. This writ petition, after

arguments, was withdrawn and the following order was passed by a learned

Single Judge of this Court on 10.01.2012 :-

"After some arguments Counsel appearing on behalf of the Petitioner seeks leave to withdraw this Writ Petition.

The Writ Petition is dismissed as withdrawn and disposed of accordingly."

Therefore, even the filing of the present writ petition is barred at the outset

because once the writ petition claiming the same relief is filed, and the same

is not pressed on merits but withdrawn, another writ petition cannot be filed

on basically the same set of facts and seeking the same relief simply by

adding other facts and certain other reliefs although in essence the earlier

writ petition was, as well as the present writ petition is, basically for

quashing of the order giving voluntary retirement to the petitioner passed on

30.12.2003.

(iv) The third aspect, is both of concealment, and the lack of

bonafides of the petitioner, and which is that the petitioner mentions very

cryptically, that too in the list of dates only and not in the main body of the

writ petition, that the claim for reinstatement was made by the petitioner in

an earlier writ petition being W.P.(C) No.5198-99/2005 but that relief was

declined till the Supreme Court and even the review petition filed by the

petitioner before the Supreme Court was dismissed. With regard to this set

of facts counsel for the respondent no.1 has filed before this Court a copy of

the earlier W.P.(C) No.185/2012, and the reading of various paras in the

same talks of the petitioner seeking reinstatement, but being unsuccessful

and the SLP thereafter being decided by the Supreme Court on 29.3.2010

and 6.4.2010 and the review petition filed by the petitioner was also

dismissed by the Supreme Court on 6.5.2010. Clearly therefore petitioner is

guilty of concealment of facts as also is lacking in bonafides in approaching

the Courts repeatedly by filing litigations essentially seeking the same relief

of quashing of the order dated 30.12.2003.

4. Learned counsel for the petitioner argued by relying upon three

Supreme Court judgments, as stated below, that a clause in a scheme

whereby a person is not allowed to withdraw his option for voluntary

retirement is void and the issue with respect to validity of a clause in the

SVRS is a matter of law and a point of law cannot be res judicata and

therefore it is argued that the present writ petition is maintainable. The

judgments which are relied upon are as under:-

(i) Bank of India and Ors. Vs. O.P. Swaranakar etc. AIR 2003 SC 858

which lays down that a person is entitled to withdraw his option of voluntary

retirement before a prospective date or before it is accepted and it is also

held in this judgment that questions of law cannot be res judicata and can be

raised in a subsequent case.

(ii) Bishwanath Prasad Singh Vs. Rajendra Prasad & Anr. AIR 2006

SC 2965 which holds that a pure question of law can always be decided and

there is no applicability of the principles of res judicata qua a pure question

of law.

(iii) Nand Kishore Vs. State of Punjab (1995) 6 SCC 614 and which

judgment condones the delay of 31 years in filing of the writ petition and it

is further held in the judgment that an issue of constitutionality of a statutory

provision cannot be said to have been decided in an earlier judgment once

that aspect is not specifically made an issue in the earlier decided case.

5. There is no quarrel to the propositions of law, and nor can there

be any, that, an option for voluntary retirement can always be withdrawn

before it is accepted or before the prospective date fixed for voluntary

retirement which has yet to come, however, that cannot mean that the illegal

action can be challenged at a point of time with delay and laches of 11 years

and that too when an earlier writ petition seeking the same relief being

W.P.(C) No.185/2012 was filed but the same after arguments was

withdrawn. Therefore, merely because the question is a question of law

cannot mean that the same can be raised repeatedly, and the second time

after over a decade, and much less because during this entire period till the

filing of the earlier W.P.(C) No.185/2012, it is not shown that the petitioner

has been continuously representing for setting aside the order of the

voluntary retirement passed way back on 30.12.2003. Also, I may note that

it is settled law that filing of continuous representations does not change the

issue of limitation or the doctrine of delay and laches which is applied for

the writ petitions, as, a catena of judgments have held that making repeated

representations does not extend the period of limitation or condone the

doctrine of delay and laches in filing of the writ petition. Therefore, the

issue is not that there is a question of law, but the issue is that the question of

law ought to have been raised within a reasonable period of around three

years and preferably within the period of limitation, but the petitioner has

filed this petition challenging an order of the year 2003 in the year 2015 and

that too when an identical prayer was made in an earlier writ petition being

W.P.(C) No.185/2012 and which writ petition was not pressed. The petition

is therefore clearly liable to be dismissed.

6. Petitioner is also guilty of lack of bonafides because it is very

easy for the petitioner to say that he has not touched the amount of around

Rs.15 lacs received pursuant to the acceptance of the voluntary retirement,

however, petitioner has deliberately not filed his bank statement to show that

the amount received on voluntary retirement lies as it is in his bank account,

and that the petitioner has not utilized the same.

7. It is high time that to certain sections of litigants in this country

a very strict message is sent that the object of approaching the Court of law

is on an issue which would have at least some reasonable case for being

heard by the Court. Litigants cannot insist that access to justice is an

entitlement to abuse the process of the law by filing repeated litigations

claiming the same reliefs and which is impermissible in law, and that too

filing after a decade or more of arising of the cause of action which is that

the impugned decision of 2003 is challenged in 2015. There are thousands

of litigants whose genuine cases remain pending because of lack of hearing,

and one of the reasons for lack of hearing to such cases is that this Court has

to devote time to frivolous cases such as the present one filed by the

petitioner. This writ petition is therefore dismissed with costs of

Rs.50,000/-. Costs can be recovered by the respondent no.1 from any of the

monetary emoluments which are payable to the petitioner, of course in

accordance with law.

FEBRUARY 06, 2015                                  VALMIKI J. MEHTA, J
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